Does law exhibit a significant constraint on Supreme Court justices decisions? Although proponents

Transcription

1 American Political Science Review Vol. 103, No. 3 August 2009 The Constraining Capacity of Legal Doctrine on the U.S. Supreme Court BRANDON L. BARTELS George Washington University doi: /s Does law exhibit a significant constraint on Supreme Court justices decisions? Although proponents of the attitudinal model argue that ideology predominantly influences justices choices, hybrid models posit that law and ideology exhibit discrete and concurrent effects on justices choices. I offer a new conceptualization of legal constraint examining how legal rules permit varying degrees of ideological discretion, which establishes how strongly ideological preferences will influence justices votes. In examining the levels-of-scrutiny legal doctrine, I posit theoretical models highlighting the differential constraining capacities of the strict scrutiny, intermediate scrutiny, and rational basis rules. I use a multilevel modeling framework to test the hypotheses within the context of the Grayned doctrine in free expression law. The results show that strict scrutiny, which Grayned applied to contentbased regulations of expression, significantly constrains ideological voting, whereas intermediate scrutiny (applied to content-neutral regulations) and the low scrutiny categories each promote high levels of ideological voting. I n politics and government, institutions both rules and norms operate as important constraints that structure the decision-making processes of actors. Legislators, judges, bureaucrats, voters, and other actors make decisions within an institutional context defined by formal and informal rules that constrain individual discretion and ultimately shape actors choices (e.g., March and Olsen 1984; McCubbins, Noll, and Weingast 1987; North 1990; Rohde 1991; Shepsle 1979). On the U.S. Supreme Court, the justices institutional context is almost completely dominated by a web of informal rules, or norms (e.g., Epstein and Knight 1998; Maltzman, Spriggs, and Wahlbeck 2000; Murphy 1964). Perhaps the most important norm on the Court is stare decisis, or precedent, which is a facet of the law prescribing how past decisions should guide choices in current and related cases. 1 Supreme Court justices make rules by issuing precedents that contain legal doctrines intended to constrain not only lower court judges and actors in the political environment, but also themselves and future justices. Legal doctrines, like rules in other contexts, prescribe certain outcomes under various conditions. Consequently, legal doctrine is capable of restricting the range of viable policy alternatives, which serves to limit individual discretion in decision making by lower courts and future Supreme Courts (a la McCubbins, Brandon L. Bartels is Assistant Professor, Department of Political Science, George Washington University, 2115 G Street, NW, 440 Monroe Hall, Washington, DC (bartels.20@gmail.com). A previous version of this article was presented at the 2006 Annual Meeting of the Midwest Political Science Association. I am extremely grateful to Lawrence Baum for his valuable comments and suggestions at all stages of this project. Thanks also to Janet Box-Steffensmeier, Roman Ivanchenko, Lindsey Levitan, Rene Lindstaedt, Kathleen McGraw, Jeffrey Segal, Joel Simmons, Oleg Smirnov, and Elliot Slotnick for their helpful suggestions. I thank Mark Richards and Herbert Kritzer for sharing their data. Finally, I am grateful to the APSR editors and three anonymous reviewers for extremely valuable feedback and suggestions. 1 In addition to precedent, other facets of the law include plain meaning and intent underlying the U.S. Constitution and statutes (see, e.g., Gates and Phelps 1996; Howard and Segal 2002). Noll, and Weingast 1987). Through this mechanism, legal doctrine allows the Court to exert control over the future course of legal policy (Bueno de Mesquita and Stephenson 2002; Jacobi and Tiller 2007). From a normative point of view, adherence to precedent sends a signal to the legal community and the mass public that the Court s legal interpretations contain considerable continuity and do not change simply because of membership change on the Court. Such signals, it is often argued, enhance the legitimacy of the Supreme Court in the eyes of the public and the other branches of government (e.g., Epstein and Knight 1998). The Court s legal rules also have significant real world implications for rights, liberties, and democracy. Strong rights-protective rules can be viewed as democracy foreclosing because they restrict the degree to which elected representatives can make policy on the topic, whereas more innocuous and minimalistic rules are democracy promoting in that they leave considerable room for elected officials to pass laws on the topic (Sunstein 1999). In this article, I revisit one of the central inquiries in judicial politics: how, and to what extent, does legal doctrine genuinely constrain justices choices? Although some scholars contend that justices are strongly guided by legal considerations (e.g., Gilman 1999, 2001; Kahn 1999), others argue that legal doctrine represents a flexible norm that has a minimal bearing on the justices. Proponents of the attitudinal model (Rohde and Spaeth 1976; Schubert 1974; Segal and Spaeth 2002; Spaeth and Segal 1999) claim that because Supreme Court justices are electorally unaccountable and sit atop the federal judicial hierarchy, they have unbridled discretion to decide cases on the basis of their ideological, or personal policy, preferences. By ideology and policy preferences, which I treat as synonymous, I mean that justices are predisposed to hold views on legal issues that range from liberal positions to conservative positions. In one test of the legal model, Spaeth and Segal (1999; Segal and Spaeth 1996) find that dissenters in landmark cases adhered to 474

2 American Political Science Review Vol. 103, No. 3 precedent in subsequent and related (i.e., progeny) cases only 12% of the time. They boldly conclude that the justices are rarely influenced by stare decisis (Spaeth and Segal 1999, 288). Critics claim that Spaeth and Segal present an antiquated mechanical jurisprudence perspective of legal reasoning that incorrectly suggests how justices should automatically adhere to prior controlling precedents (e.g., Friedman 2006; Gilman 2001). Supreme Court decision making involves greater complexity, and the effect of the law is often highly nuanced and difficult to validate with social science research designs. Moreover, the legal doctrines stipulated by the Supreme Court are not necessarily determinative of certain outcomes given a configuration of facts (Tiller and Cross 2006). Instead, they are frameworks that structure justices decision processes (Richards and Kritzer 2002), and the contextual characteristics of the case carry considerable sway as well (Winkler 2006). In addition, although lower court judges are bound to a greater extent by Supreme Court precedent, the Supreme Court itself is not explicitly bound to follow its own precedents. However, there are several reasons why the justices would want to be faithful to and constrained by the Court s own precedents. First, justices are socialized to be accountable to the body of law that has preceded them. Justices are, at the least, sensitive to the norm of respect for past precedents and legal frameworks (e.g., Baum 2006; Braman 2004; Knight and Epstein 1996). They are also accountable to the legal audiences other judges, lawyers, the media, the intellectual community who comment on and interpret justices decisions (see Baum 2006). Second, although ideological motivations might lead the Court to create certain legal doctrines, once they are created, it is often in the Court s interests to abide by them in order to impose stability and predictability within the legal system (Bueno de Mesquita and Stephenson 2002; Richards and Kritzer 2002). The Supreme Court sits at the apex of an extensive federal judicial hierarchy. Therefore, it is charged with the responsibility of providing guidance and clear signals to lower court judges and lawyers about how its doctrines should be interpreted. Efficient management of the lower courts and an instinct to maintain its institutional legitimacy prevents the Court from producing frequent, wholesale reversals of its precedents. Adopting some of these arguments in response to the attitudinal model, alternative perspectives contend that although ideology influences justices choices, the law exerts an independent and concurrent influence as well (e.g., Bailey and Maltzman 2008; Baum 1997; George and Epstein 1992; Pritchett 1954; Richards and Kritzer 2002). I refer to such models as hybrid models, and one of the most influential is Richards and Kritzer s (2002) jurisprudential regimes theory, which posits that certain precedents create jurisprudential regimes essentially legal doctrines created by the justices to structure future decision making highlighting how legal standards should apply to certain types of fact situations. In sum, although hybrid models argue for a genuine influence of the law, they also concede that ideology exhibits an impact on decision making that is independent from the law. That is, they focus on the discrete channels of influence exhibited by law and ideology, which I argue leaves a significant gap in our understanding of precisely how legal doctrine constrains justices. Moreover, these perspectives do not place an explicit emphasis on the differential impacts of legal rules. In this article, I offer a new perspective on how and to what extent law constrains justices decision making. I provide two central contributions. First, although hybrid models highlight the discrete and orthogonal effects of law and ideology, I offer a theoretical departure from hybrid models and posit how legal rules permit varying degrees of ideological discretion justices have in a given case, which in turn shapes the magnitude of ideological voting (i.e., the degree to which ideology influences justices choices). I present competing models of how the levels-of-scrutiny legal doctrine employed for numerous legal issues shapes ideological discretion among the justices. The article s second key contribution centers on the notion that not all rules emanating from a legal doctrine carry with them the same constraining capacity. Political scientists often think of rules as necessarily limiting an actor s discretion; the same logic is often applied to legal doctrine on courts. However, my theoretical framework specifically highlights how some rules significantly constrain ideological discretion, whereas others give justices a significant amount of discretion to act on the basis of ideological preferences. I test these propositions using cases from free expression law. The theory and findings provide a compelling and more complete portrait of law s influence in Supreme Court decision making, focusing on the mechanisms underlying the constraining and nonconstraining capacity of legal rules on the Supreme Court. THE CONSTRAINING CAPACITY OF LEGAL DOCTRINE: A NEW PERSPECTIVE I begin this section by explaining the function of a widely used legal doctrine on the Supreme Court: the levels-of-scrutiny framework. I then present competing models for how the rules within this framework constrain or do not constrain ideological discretion. The Levels-of-Scrutiny Doctrine In setting legal doctrine, the Supreme Court prescribes different levels of scrutiny to various types of governmental laws and regulations. In constitutional law, these levels of scrutiny reflect the Court s interpretation of how protective the Constitution should be of rights and liberties, such as equality, the right to privacy, and the freedoms of speech, press, and religious exercise. Higher levels of scrutiny are highly rights protective and coincide with a strong presumption that a rights-restrictive government act will be struck down by the Court as a violation of the Constitution. By a government act, I mean either a law passed by a federal, 475

3 Constraining Capacity of Legal Doctrine August 2009 state, or local government or an action of a government official. Lower levels of scrutiny reflect a lower degree of rights protectiveness and presume that a government act is valid. Where do these rules come from? Although one could argue that the Supreme Court has always used the logic underlying levels of scrutiny when deciding whether the Constitution should invalidate a government act, the Court first formalized such a framework in the famous footnote 4 in U.S. v. Carolene Products (1938) (Chemerinsky 2002; Tribe 1988; Winkler 2006). In the footnote, Justice Stone argued that governmental regulations of the economy should receive low judicial scrutiny and should therefore possess presumptive validity. However, Stone argued that government acts placing restrictions on fundamental constitutional rights and liberties (e.g., freedom of speech, press) should receive greater judicial scrutiny. In the development of constitutional law in various issue areas, three legal rules have emanated from this doctrine (see Winkler 2006). Each suggests different standards of balancing individual rights and liberties versus governmental interests. 2 The first is strict scrutiny, which is the most rights-protective level of review and places the burden of proof on the government to demonstrate a compelling state interest for the existence of a rights-restrictive government act. Under strict scrutiny, there is a presumption that such an act will be struck down unless it is narrowly tailored to achieve a compelling state interest because it violates a right or liberty deemed to be fundamentally protected by the U.S. Constitution. It is often said that this rule is strict in theory and fatal in fact because a law accorded strict scrutiny will hardly ever pass the very high bar that constitutes a compelling state interest (Gunther 1971, 8; Winkler 2006). However, Winkler (2006, 796) finds that a nontrivial proportion of federal court cases has been upheld under strict scrutiny review, suggesting that strict scrutiny is survivable in fact (see also Baldez, Epstein, and Martin 2006). In equal protection law, at least since Brown v. Board of Education (1954), laws discriminating on the basis of race are accorded strict scrutiny. For free expression, government acts that regulate the content of speech (i.e., contentbased regulations) have traditionally been accorded strict scrutiny (Richards and Kritzer 2002). In Roe v. Wade (1973), the Court prescribed strict scrutiny to laws regulating abortion during the first two trimesters (the previability stage) of pregnancy. The second and least rights-protective rule is rational basis, which places the burden of proof on the individual challenging a government act to show that one s individual rights and liberties have been significantly infringed upon. This standard of review grants the government the maximum amount of latitude in making 2 Legal scholars often differentiate between rules and standards (Jacobi and Tiller 2007; Tiller and Cross 2006). Rules are generally determinative of a particular outcome, whereas standards provide a less determinative guide for making a decision. Although levels of scrutiny are standards, I use the term rules to describe them here because it is in accord with my focus within political science on how institutions influence government actors. rights-restrictive restrictions that serve a legitimate or reasonable purpose. In rational basis review, the Court presumes a government act will be upheld. In Roe v. Wade (1973), the Court assigned rational basis review to laws regulating abortion during the third trimester of pregnancy. The Court argued that during this advanced stage of pregnancy, a government has a legitimate interest in protecting a fetus that could survive outside the womb. In free expression law, traditionally less protected forms of speech, such as obscenity (Miller v. California 1973) and fighting words that could incite violence (Chaplinski v. New Hampshire 1942), have been given the lowest amount of scrutiny, and therefore, the lowest amount of constitutional protection (Richards and Kritzer 2002). In between these two levels of scrutiny falls the third rule: intermediate scrutiny. For this rule, which is moderately rights protective, a government act will be upheld if it is substantially related to an important government interest (Chemerinsky 2002, 519). For intermediate scrutiny, the government bears a fraction of the burden of proof to demonstrate why it passed a particular rights-restrictive law, but the individual also bears a fraction of this burden to demonstrate that the law violates a fundamental constitutional freedom. Importantly, there is no presumption for whether a government act accorded this level of review should be upheld or struck down. In the Court s Planned Parenthood v. Casey (1992) decision, which amended the Roe v. Wade doctrine, the Court prescribed that governmental regulations of previability abortions be accorded a form of intermediate scrutiny known as the undue burden test. By lowering the standard from strict to intermediate scrutiny, the Court gives states more discretion to place certain restrictions on abortion, yet it still suggests a constitutional threshold that states cannot exceed. In free expression law, contentneutral regulations those not based on content but on time, place, and manner restrictions have been accorded intermediate scrutiny (Richards and Kritzer 2002). In equal protection issues, laws discriminating on the basis of sex are accorded intermediate scrutiny (Craig v. Boren 1976), which gives government some latitude to legislate sex classifications (see also Baldez, Epstein, and Martin, 2006). Levels of Scrutiny and Ideological Discretion: Competing Theoretical Models I contend that the rules within the levels-of-scrutiny framework permit varying degrees of discretion justices have to decide the case on the basis of their ideological preferences. They do so by restricting or expanding the set of feasible outcomes available to the justices. Here, I present competing models of this process. Importantly, the models highlight the differential constraining capacities of legal rules. Figure 1 aids in the discussion of the models. I refer to the first model as the legal presumptions model, which emphasizes that constraint is a function of how strongly a legal rule presumes a certain case outcome. For the strict scrutiny and rational 476

4 American Political Science Review Vol. 103, No. 3 FIGURE 1. Constraining Capacity of Legal Rules: (A) Legal Presumptions Model, and (B) Rights-Protectiveness Model A High Degree of Ideological Discretion Low Rational Basis Intermediate Strict Level of Scrutiny B High Degree of Ideological Discretion Low Rational Basis Intermediate Strict Level of Scrutiny basis rules, the strong presumptions of striking and upholding a rights-restrictive regulation, respectively, means that justices have fewer legally justifiable alternatives available to them compared to a case where there is no presumptive outcome, as in intermediate scrutiny. Thus, where the presumption of a certain outcome is high, the legal rule stipulates a particular outcome and therefore leaves a low degree of discretion for ideologically driven behavior. However, for intermediate scrutiny, where no presumption exists, justices possess a considerably higher degree of ideological discretion (compared to strict scrutiny and rational basis), where they can more freely decide cases on the basis of their ideological preferences. It is important to note here that even though rational basis does not always lead to a justice to cast a progovernment (conservative) vote and strict scrutiny does not always lead a justice to cast a proindividual (liberal) vote (e.g., Baldez, Epstein, and Martin, 2006; Winkler 2006), each rule can still constrain ideological discretion. Indeed, one would not expect judges, especially Supreme Court justices, to cast votes in accord with a legal presumption 100% of the time. Other contextual characteristics of the case come into play, and, as Winkler (2006) shows, strict scrutiny is indeed survivable in fact, with judges sometimes able to find a compelling state interest that justifies a rightsrestrictive regulation. Given this, though, legal presumptions can still exhibit constraint on individual discretion because they restrict the range of legally justifiable conclusions for ruling against the presumption. However, for intermediate scrutiny, where the range of viable alternatives is greater because of the lack of a legal presumption, judges have a greater ability to decide the case on the basis of ideological preferences. Figure 1A depicts the legal presumptions model. The x-axis represents the three levels of scrutiny, ranging from rational basis to strict scrutiny. The y-axis represents the amount of ideological discretion justices have in a given case. The legal presumptions model 477

5 Constraining Capacity of Legal Doctrine August 2009 posits that ideological discretion is a nonlinear function of the levels of scrutiny. This model implies that for rational basis and strict scrutiny, where there is a strong presumption for a particular outcome, ideological discretion is low. But for cases involving intermediate scrutiny, discretion is quite high. For strict scrutiny, rights-protective standards are maximized, and there is a presumption that the rights-restrictive regulation should be struck down. Thus, if strict scrutiny operates as a constraint, it significantly limits a justice s freedom to reach a conclusion that the act should be upheld. For rational basis, if a strong norm of deference toward the government is operative, which presumes a government act should be upheld, it significantly limits a justice s freedom to reach the conclusion that the act should be struck down. For intermediate scrutiny, the model posits that ideological discretion is maximized relative to the other two rules because there is no strong presumption about the fate of a government act. Thus, the expectation from the legal presumptions model is that the impact of ideological preferences on justices choices will be significantly higher for intermediate scrutiny compared to both rational basis and strict scrutiny. Importantly, the model highlights the differential capacities of legal rules to exhibit constraint. Rules that presume the validity or invalidity of a government act are posited to significantly constrain ideological discretion. But intermediate scrutiny, which does not presume an outcome, will not constrain justices, therefore leaving them wide-ranging discretion to pursue ideological preferences. Unlike the legal presumptions model, the rightsprotectiveness model posits that it is not the presumption of an outcome, per se, that constrains justices, but the degree to which a doctrine deems that the Constitution is protective of rights and liberties. Put another way, legal rules that prescribe greater constitutional scrutiny of a law will exhibit more constraint on ideological discretion compared to rules that prescribe lower scrutiny. Figure 1B depicts this logic, where ideological discretion is a linear function of scrutiny. For strict scrutiny, ideological discretion is minimized because legal doctrine stipulates that the Constitution is explicitly prescribing a certain outcome (i.e., striking down a rights-restrictive government act). As the level of scrutiny decreases (from intermediate scrutiny to rational basis), ideological discretion increases. In this model, it is the degree to which the Constitution protects a right or liberty that constrains justices. The rational basis rule suggests that the Constitution is not significantly rights protective for a class of rightsrestrictive government acts, and therefore, the doctrine does not impose any constitutional constraint on ideological discretion. Intermediate scrutiny suggests greater rights protectiveness than rational basis but less than strict scrutiny. Therefore, this rule should impose moderate constraint on ideological discretion. The rights-protectiveness model s expectation for the rational basis rule accords with classic behavioral studies (e.g., Spaeth 1964; Spaeth and Teger 1982) in suggesting that a deference norm toward the government is not operative on the Court. The legal presumptions model rests on the assumption that, under rational basis review, the Court will defer to the government via a presumption to uphold the law. The rights protectiveness model, however, suggests that the Court will not defer to a government under rational basis because the Court is only constrained by the degree of constitutional scrutiny given to a class of cases; rational basis review is associated with a very low degree of constitutional scrutiny. Under this model, the Court is only responsive to, and constrained by, high levels of constitutional scrutiny in conjunction with the intent of the Constitution. The First Amendment states that Congress shall make no law...abridging the freedom of speech... The Court has used doctrine to fill in the gaps of this language, but the Constitution is clear about protecting the freedom of speech against government restrictions. However, it is not explicit about when the government should receive deference when passing rights-restrictive laws. Thus, this model posits that the more explicitly the Constitution speaks toward a particular law, the less ideological discretion justices will have. In sum, the expectation from the rights-protectiveness model is that ideological discretion will be higher for rational basis than for intermediate scrutiny, and discretion for intermediate scrutiny will in turn be higher than for strict scrutiny. Like the previous model, the rights-protectiveness model highlights the differential constraining capacities of legal rules. Here, rules that prescribe greater constitutional scrutiny will constrain ideological discretion. But rules that prescribe low constitutional scrutiny will not constrain justices, leaving them significant discretion to act on the basis of their ideological preferences. FREE EXPRESSION LAW To test these competing theoretical models, I analyze Supreme Court justices behavior in cases from the free expression issue area, which includes freedom of speech and press issues. This issue area presents a clean test of the perspective presented previously. Through a qualitiative and quantitative assessment, Richards and Kritzer (2002) argue that two 1972 Supreme Court cases, Chicago Police Department v. Mosley and Grayned v. Rockford, instituted a legal doctrine (hereinafter, the Grayned doctrine ) prescribing levels of scrutiny that should be applied to four different types of governmental regulations of expression. Richards and Kritzer found empirical support for their theory that jurisprudential regimes structure justices decision making. The key difference between my theoretical perspective and Richards and Kritzer s is that they focus on how the probability of justices proexpression voting differs between the four legal categories, and whether these differences are distinct after Grayned compared to before. The theoretical propositions I have posited entail comparing the impact of ideology on vote choices among these legal categories as a result of the Grayned doctrine. As discussed previously, 478

6 American Political Science Review Vol. 103, No. 3 my perspective posits a more fully specified portrait of legal constraint by (1) examining the conditions under which legal doctrine constrains justices from acting on the basis of their ideological preferences, and (2) examining the differential constraining capacities of legal rules. Before stating specific hypotheses related to free expression law, I briefly describe and give examples of the legal categorizations in free expression law. First, the Grayned doctrine assigns a strict scrutiny rule to content-based regulations when government regulates expression based on the substance or impact of communication. The case Lamb s Chapel v. Center Moriches School District (1993) provides an example of a content-based regulation. In this case, a New York school district prohibited the after-school use of school property for a religious organization to show religious films related to family values. 3 The district s restriction of the religious group s expression constituted a content-based regulation because it was not viewpoint neutral. The Court ruled unanimously that the district s restriction violated the First Amendment s freedom of speech clause because it restricted speech on the basis of the religious group s views. Second, the Grayned doctrine prescribed that content-neutral regulations those not based on the content of expression but on time, place, and manner restrictions be given intermediate scrutiny. The government must demonstrate a valid interest in making such regulations. In Heffron v. International Society for Krishna Consciousness (ISKC) (1981), the Court considered whether a Minnesota State Fair rule confining solicitors and vendors to fixed locations as opposed to allowing for mobile solicitation on the fairgrounds violated the First Amendment. The ISKC claimed that the rule significantly restricted the group s ability to communicate its viewpoints. In a 5 4 decision, the Court ruled that the State Fair rule did not violate the First Amendment because it did not discriminate among groups on the basis of a group s viewpoint. Also, the rule was a valid time, place, and manner restriction because the state had an interest in maintaining order at the State Fair for all patrons, an objective that was fulfilled by enforcing the fixed location for vendors. To the third and fourth categories traditionally less protected forms of speech and regulations where the threshold for First Amendment protection was not met the Grayned doctrine assigned the lowest amount of scrutiny, and therefore, the lowest amount of constitutional protection. 4 Less protected speech includes obscenity, commercial speech, broadcast media expression, expression in nonpublic forums and schools, union picketing, and libel against private figures (Richards and Kritzer 2002, 311). In the case of obscenity, many 3 The Court had ruled out the possibility of a violation of the First Amendment s establishment clause because the use of school property was requested outside official school hours. 4 Richards and Kritzer do not explicitly refer to these last two categories as fitting within a rational basis category, although both categories are akin to this standard of review. As I explain in more detail, laws regulating these types of expression should be more likely to be upheld than content-based or content-neutral regulations. states have restricted the use of and distribution of obscene materials. In Miller v. California (1973), the Court considered whether a California restriction prohibiting the mailing of adult material violated the First Amendment. The Court reiterated that such restrictions be given a low amount of constitutional scrutiny, and moreover, such restrictions pass constitutional muster if the obscene material lacks serious literary, artistic, political, or scientific value. An example of where the threshold of First Amendment protection is not met comes from Regan v. Taxation Without Representation (TWR) (1983). In this case, TWR, a nonprofit corporation, sought tax-exempt status from the Internal Revenue Service (IRS) but was denied on the basis that its mission was to exhibit an impact on legislation, which, according to federal law, prohibits tax-exempt status. The Supreme Court sided with the IRS, arguing that Congress vis-à-vis the federal law did not expressly restrict any activity related to the First Amendment s freedom of speech clause; the law merely states conditions under which nonprofit corporations may receive tax-exempt status. Hypotheses for Free Expression Law Because the Grayned doctrine assigns levels of scrutiny to various regulations of expression, I can state hypotheses about how legal rules constrain or do not constrain ideological discretion, and therefore, the magnitude of ideological voting in the free expression area. From the theoretical discussion associated with Figure 1, two competing hypotheses posit how the impact of ideology on justices votes differs between the four categories discussed previously once the Grayned doctrine is instituted. Legal Presumptions Hypothesis: The magnitude of ideological voting will be higher for cases involving content-neutral regulations compared to cases involving content-based regulations and the low scrutiny categories; the content-based and low scrutiny categories will evince similar magnitudes of ideological voting. Rights-Protectiveness Hypothesis: The magnitude of ideological voting will be greater for the low scrutiny categories compared to cases involving both contentneutral and content-based regulations; cases involving content-neutral regulations will evince a higher degree of ideological voting than cases involving content-based regulations. I will also test whether these factors shape the degree of ideological voting in significantly different ways after the Grayned doctrine is instituted compared to before. 5 5 No clear expectations emerge for the pre-grayned cases because comprehensive legal standard like the Grayned doctrine was not in place before Grayned (Richards and Kritzer 2002). Crucial for testing these hypotheses is having a legal doctrine in place, and the Grayned doctrine provides this. 479

7 Constraining Capacity of Legal Doctrine August 2009 DATA AND EMPIRICAL ANALYSIS A multilevel (hierarchical) modeling framework is well qualified to test these hypotheses. Hierarchical data structures contain more than one level of analysis, where units from one level are nested within units from a higher level. Using Bayesian inference via Markov Chain Monte Carlo (MCMC), I estimate a model employing a three-level hierarchical structure: justices choices (level 1 units) nested within cases (level 2 units) nested within years (level 3 units). This methodology provides a unique modeling opportunity to translate the theoretical propositions presented previously onto a statistical modeling specification with a high degree of congruence. The specification of a random coefficient model (discussed later in this article) allows for a potent empirical assessment of how legal doctrine shapes and constrains the magnitude of ideological voting. The framework also facilitates a secondary goal of assessing the direct effects in line with extant hybrid models of legal factors on the probability of a proexpression vote. I analyze data gathered and examined by Richards and Kritzer (2002) consisting of justices votes on all free expression cases decided from 1953 to Richards and Kritzer (2002, 312) code free expression cases as those that include a free press, free expression, or free speech issue according to Spaeth s (2005) Supreme Court database and Westlaw. The data consist of 4,985 choices (level 1 units) nested within 570 cases (level 2 units) nested within 45 years (level 3 units). 6 For all analyses, the dependent variable a justice s choice in a case is dichotomous, where 1 is a vote to strike down a speech-restrictive government act (a liberal, or proexpression, vote) and 0 is a vote to uphold such an act (a conservative, or antiexpression, vote). The key independent variables of interest are justices ideological preferences (IDEO), the categories of free expression regulations prescribed certain legal (or jurisprudential) categories, and the indicator for whether a case came before or after the Grayned doctrine (G) was instituted. 7 Measuring ideological preferences is a complicated issue in judicial politics that requires careful attention in various types of judicial decision-making analyses. I employ Martin and Quinn (2002) scores, which are estimates of justices ideological preferences from a Bayesian item response measurement model; higher values indicate more liberal preferences. 8 Although the measure possesses strengths and weaknesses, it possesses some major strengths compared to alternatives, particularly Segal-Cover (1989) scores. I provide a more detailed discussion of measuring preferences 6 Richard and Kritzer s n = 4,986. A tenth datapoint was mistakenly included in the case Masson v. New Yorker Magazine (501 U.S. 496, 1991). I deleted this observation. 7 The Grayned and Mosley cases were decided in As originally coded, negative Martin and Quinn scores reflect more liberal ideological preferences, whereas positive values reflect more conservative preferences. I switched the sign so that increasing values of the variable reflect more liberal ideological preferences. in Appendix A, but I highlight some of these issues here. First, Martin-Quinn scores allow for valid, relative comparisons of ideology between justices, thus allowing one to ascertain, for example, how much more liberal Justice Stevens is compared to Justice Breyer. Second, in an analysis covering a long time span such as this one, it is crucial to use a measure that possesses intertemporal comparability, meaning that justices ideological positions, regardless of whether they served with each other, are in the same ideological space. Third, the measure allows justices ideological positions to change over time, which is important given the dynamic properties of many justices ideological preferences (e.g., Epstein, Hoekstra, Segal, and Spaeth 1998; Epstein, Martin, Quinn, and Segal 2007). Some scholars highlight that the measure is tautological because it comes from an item response model of justices votes. Martin and Quinn (2005) directly address the issue of using ideal point estimates as independent variables in a model explaining justices votes. The authors perform several analyses, including estimating preferences that escape the tautology issue using all cases to estimate ideal points, except for those in a particular issue area that one wants to analyze subsequently. Martin and Quinn (2005, 5, emphasis added) conclude that if the dependent variable is votes on the merits, using Martin-Quinn scores is reasonable, even while recognizing the circularity problem, if the subject of the study is a single issue area. While circularity is still technically a problem, [our] results...demonstrate that as a practical matter it is not a significant concern. My use of Martin-Quinn scores falls squarely within the authors recommendations. I analyze justices votes on the merits within a single issue area (free expression law), so using Martin-Quinn scores should pose no practical concerns with respect to the tautology issue. However, as a robustness check, I estimated a model using Segal-Cover scores. The results from that model are presented in Appendix B. Substantive results were similar across models employing the different measures. The types of free expression regulations, which are connected to the Grayned legal doctrine, are operationalized as a nominal variable, so I include dummy variables for whether a case involves a government restriction that is content based (CB), a traditionally less protected category (LP), or whether the threshold for First Amendment protection was not met (TN). Cases involving content-neutral regulations (CN) serve as the baseline group (see Richards and Kritzer 2002, Appendix A, for measurement details). A Grayned dummy variable (G) indicates whether cases came before ( 0 ) or after ( 1 ) the Grayned doctrine was instituted. Before Grayned ( ), there were 164 cases (1,408 votes of the justices) involving content-based regulations, 8 cases (72 votes) involving content-neutral regulations, 53 cases (467 votes) involving the less protected category, and 5 cases (44 votes) where the issue failed to meet the First Amendment threshold. After Grayned ( ), there were 162 (1,

8 American Political Science Review Vol. 103, No. 3 votes) cases involving content-based regulations, 31 cases (269 votes) involving content-neutral regulations, 132 cases (1,158 votes) involving the less protected category, and 15 cases (135 votes) where the issue failed to meet the First Amendment threshold. Finally, control variables (X qjt ) include case facts variables (specified by Richards and Kritzer) indicating the type of action involved, the level of government making the regulation, and the identity of the speaker. Before discussing model specification, I address the potential consequences of selection bias for the analysis. The key issue is whether Grayned may have induced changes in the types of cases being heard within each legal category that artificially bias the magnitudes of ideological voting predicted by the theoretical models. Such changes could result from changes in the kinds of cases brought to the Court or from changes in the kinds that the Court selects from that pool. Because there is no feasible way to measure these potential changes systematically, it is difficult to ascertain the actual magnitude of selection bias. However, it is possible to theoretically explore the potential effects of these changes in case composition. One possibility is that after Grayned, content-based cases raising difficult issues not necessarily anticipated by Grayned were prime candidates for case selection, leaving considerable ideological discretion for this legal category. Such a mechanism would decrease the presumptive pull and thus the constraining capacity of strict scrutiny as theorized. This kind of selection bias would work against finding any constraint in ideological voting for strict scrutiny predicted by either theoretical model. For content-neutral cases, accorded intermediate scrutiny, any changes in the types of cases being heard after Grayned (e.g., if they are more difficult) should not significantly alter the degree of ideological discretion because intermediate scrutiny allowed for wide-ranging discretion already. Because the Court had long-standing precedents regarding the treatment of the low scrutiny categories and was primarily seeking to clarify between content-based and content-neutral categories, selection bias induced by Grayned should not pose significant concerns for these categories either. In sum, any differences found between categories will be especially significant in that they may be working against a selection mechanism induced by Grayned. Three-Level Random Coefficient Model Specification Here, I describe the multilevel modeling specification used to test the hypotheses. Because I have a binary dependent variable, a hierarchical generalized linear model is required. A Bernoulli sampling model is specified, and I use a logit link. p ijt is the probability of a liberal (proexpression) vote for choice i in case j in year t. η ijt is the log-odds of p ijt (i.e., η ijt = log[p ijt / (1 p ijt )]). The log-odds can be written as a linear function of the level 1 independent variables. I specify a three-level random coefficient model and discuss it further here. (Level 1 equation) η ij t = β 0jt +β 1jt IDEO ij t (Level 2 equations) β 0jt = γ 00t + γ 01 G jt + γ 02 CB jt + γ 03 LP jt + γ 04 TN jt + γ 05 CB jt G jt + γ 06 LP jt G jt + γ 07 TN jt G jt + γ 08q X qj t + u 0jt β 1jt = γ 10t + γ 11 G jt + γ 12 CB jt + γ 13 LP jt + γ 14 TN jt + γ 15 CB jt G jt + γ 16 LP jt G jt + γ 17 TN jt G jt + u 0jt (Level 3 equations) γ 00t = π r 00t γ 10t = π r 10t Testing the legal presumption and rights-protectiveness models entails a further transformation of this main model, which I discuss as follows. But first, I describe the underpinnings of the previous specification. β 0jt is a random intercept that varies across cases and years, and it can be thought of as the average case-level propensity of a liberal voting outcome. The γ parameters in the level 2 β 0jt equation henceforth, the voting outcome equation represent effects of caselevel variables on vote outcomes. β 1jt represents the impact of ideological preferences on justices choices (i.e., the magnitude of ideological voting) and is specified to vary across cases and time. The γ parameters in the level 2 β 1jt equation henceforth, the ideological voting equation are cross-level interaction effects and represent how case-level variables shape and constrain ideological voting. By interacting the free expression regulations dummies with the Grayned dummy (i.e., CB jt G jt, CN jt G jt, and TN jt G jt ), parameters in the ideological voting equation are capable of testing whether the magnitude of ideological voting between legal categories is significantly different after Grayned compared to before. In other words, it tests whether the legal doctrine instituted by Grayned constrained justices in a distinct manner compared to the time period before Grayned. The random intercept contains stochastic components at levels 2 (u 0jt ) and 3 (r 00t ) that represent unobserved heterogeneity in the response, that is, unmeasured variability in both case-level and year-level factors that could affect the outcome. The specification of r 00t in the level 3 equation allows one to be more confident in the inferences regarding the parameters of interest because it controls for unobserved yearto-year variation due to, e.g., membership change in the propensity of a liberal vote outcome. Appendix C contains a graphical depiction of how the model accounts for this year-level variation in the intercept. The random slope (for the impact of ideology) also contains two stochastic components, u 1jt and r 10t, that account for unobserved case-level and year-level heterogeneity, 481

9 Constraining Capacity of Legal Doctrine August 2009 respectively, that may explain variation in ideological voting. Connecting Model Parameters and Hypotheses To facilitate interpretation of the model s parameters, I perform two crucial steps. First, to produce critical tests of the legal presumptions and rights-protectiveness models, I calculate separate pre- and post-grayned effects of the free expression legal categories on both the magnitude of ideological voting and the probability of a proexpression vote from the main model discussed previously. Following common methods of understanding interaction terms (e.g., Brambor, Clarke, and Golder 2006; Friedrich 1982), the effects of the free expression categories from the ideological voting equation (β 1jt ), which are relative to the baseline of the content-neutral category, can be rewritten as a function of the Grayned dummy (G) as follows: CB = γ 12 + γ 15 G jt ; LP = γ 13 + γ 16 G jt ; TN = γ 14 + γ 17 G jt. The effects of the free expression categories from the voting outcome equation (β 0jt ) can be rewritten analogously. Then, to calculate the preand post-grayned effects for each dummy (for each equation), I simply plugged in the corresponding value of the Grayned dummy. In the Bayesian computational context (discussed further later in this article), one can simply fold these calculations into the joint posterior and then retrieve posterior summaries (including Bayesian credible intervals to determine statistical significance) for each conditional effect. Testing the hypotheses central to the competing theories involves making inferences from the post- Grayned effects discussed previously. If the legal presumptions model is correct, the following effects on the magnitude of ideological voting should occur after the Grayned doctrine is instituted: 1. Effect of content-based (CB) dummy: negative; the magnitude of ideological voting will be lower for content-based compared to content-neutral regulations. 2. Effect of less protected (LP) dummy: negative; the magnitude of ideological voting will be lower for cases involving less protected expression compared to content-neutral regulations. 3. Effect of threshold not met (TN) dummy: negative; the magnitude of ideological voting will be lower for cases where the threshold for constitutional protection is not met compared to content-neutral regulations. If the rights-protectiveness model is correct, the following effects on the magnitude of ideological voting should occur after the Grayned doctrine is instituted: 1. Effect of content-based (CB) dummy: negative; the magnitude of ideological voting will be lower for content-based compared to content-neutral regulations. 2. Effect of less protected (LP) dummy: positive; the magnitude of ideological voting will be higher for cases involving less protected expression compared to content-neutral regulations. 3. Effect of threshold not met (TN) dummy: positive; the magnitude of ideological voting will be higher for cases where the threshold for constitutional protection is not met compared to content-neutral regulations. I also present postestimation presentations of the results that will illuminate further how the empirical results relate to the hypotheses. For the second step, I transformed the right-handside variables so that I can make intuitive interpretations about how the free expression legal categories exhibit direct effects on the probability of a proexpression vote. These transformations do not alter the interpretations discussed previously in the first step. To motivate the variable transformation issue, Figure 2 contains the reduced-form representation of the model, which is written by substituting the level 2 and level 3 equations into the level 1 equation. The equation is partitioned into its four primary components, the two most important being (1) effects of the case-level variables on voting outcomes and (2) effects on ideological voting. Because of the cross-level interaction terms, parameters representing effects on voting outcomes, as well as the typical effect of preferences, represent conditional effects. For example, because the content-based dummy (CB) and ideology variable are interacted, γ 02 represents how much more liberal votes were in content-based compared to content-neutral regulations (the baseline), when ideological preferences are equal to zero. Moreover, π 100 represents the impact of ideology on choices when all case-level variables with which ideology is interacted are zero. Because a secondary goal of the analysis is to assess the typical direct effects of free expression legal categories on voting outcomes, I perform a cluster median-centering approach on the ideology variable. This entails subtracting the median value of the ideology variable for a given case (i.e., cluster) from the original value of the variable. For the transformed ideology variable, the value of the median justice s ideology measure is now 0. Thus, with the cluster median-centering approach, the parameters in the voting outcome (β 0jt ) equation represent the effects of the case-level variables on the median justice s choice. Because the median justice is pivotal, these parameters can be considered estimated effects on the case outcome. 9 Furthermore, I meancentered all of the level 2 (case-level) variables, which means that π 100 represents the typical impact of ideology (the effect when all case-level variables are set at their mean values). 9 In addition to the cluster median-centering approach, I also used a cluster mean-centering approach (subtracting the case-specific mean of ideology from the original variable) and a global mean-centering approach (subtracting the samplewide mean of ideology from the original variable). Results across specifications generate nearly identical substantive conclusions. 482